Teesdale v. Anschutz Drilling Co.

• Decision Date: 14 December 1960
• Docket Number: No. 10136,10136
• Parties: Leonard TEESDALE, Plaintiff and Respondent, v. ANSCHUTZ DRILLING COMPANY, a Colorado Corporation, Defendant and Appellant.
• Court: Montana Supreme Court

Page 4

357 P.2d 4

138 Mont. 427

Leonard TEESDALE, Plaintiff and Respondent, v. ANSCHUTZ DRILLING COMPANY, a Colorado Corporation, Defendant and Appellant.

No. 10136.

Supreme Court of Montana.

Submitted Sept. 23, 1960.

Decided Nov. 17, 1960.

Rehearing Denied Dec. 14, 1960.

DeKalb, Dockery, Mondale & Johnson, Lewistown, Toomey & Hughes, Helena, for appellant. Walter E. Mondale, H. Leonard DeKalb, Lewistown, and Michael J. Hughes, Helena, argued orally.

Swanberg, Swanberg & Koby, Great Falls, Randall Swanberg, Great Falls, argued orally, for respondent.

CASTLES, Justice.

This is an appeal from a judgment in favor of plaintiff and against defendant in the district court of the tenth judicial district.

The action was brought by plaintiff for damages resulting from personal injuries sustained by him in a fall from a water tank which was in the control of defendant at the time of the accident.

The facts of this case can be ascertained by an examination of the allegations and denials of the pleadings of plaintiff and defendant. Hancock Oil Company hired defendant, Anschutz Drilling Company, to drill an oil well for them. Hereinafter Hancock Oil Company will be referred to as Hancock and Anschutz Drilling Company as defendant.

Plaintiff alleged that in the month of June 1956, he was engaged in hauling water to the site of the drilling operations of defendant, such water being required by defendant in these drilling operations. He alleged that defendant maintained and had exclusive control over the water tank on this site and that such water tank was equipped with a ladder on the side, and a water line running up the tank alongside the ladder. He further alleged that the ladder terminated at the top of the tank, whereas, the water line continued on up about two feet above the top of the tank. It was further alleged that on the side of this pipe, near the top, there was a coupling extending out to the side, to which was attached a heavy rubber hose, which ran over to a hole in the top of the tank, for the purpose of delivering the water.

Plaintiff alleged that there since was no gauge on the tank, it was necessary for him to climb the ladder to the top of the tank and look into the hole, in order to check the level of the water in the tank. It was his custom, when arriving at the top of the ladder, to take hold of the metal nipple or coupling, which connected the rubber hose to the pipe, and swing himself up on top of the tank. Plaintiff alleged that this nipple or coupling was securely fastened and provided a safe handhold for the first twelve days of June 1956. He alleged that on the twelfth day of June, or during the night, defendant was engaged in painting the tank, and in the course of the painting, the coupling became loose, so that it was not safe. It was alleged that as a result of this condition, when plaintiff climbed the ladder on June 13, the coupling came loose in his hand when he took hold of it, and he fell backwards off the ladder, landed on his chest on a junk rack below, and fell from there to the ground, sustaining severe personal injuries.

Plaintiff alleged that his fall was the result of the negligence of defendant in failing to have the coupling in a safe condition, in failing to reconnect it after it had been loosened, and in failing to warn plaintiff of its condition. Plaintiff further alleged the extent of his injuries resulting from this fall.

Defendant, in its answer, admitted the corporate existence of itself and Hancock, admitted that it was drilling an oil well for Hancock, but denied the remainder of the allegations of the complaint.

It appeared, from all of the evidence concerning the question, that plaintiff was hired by Hancock to furnish the water for the drilling operations and that defendant acquiesced and approved of this arrangement.

Defendant has assigned seventeen specifications of error in its brief. It should be noted that some of these specifications of error are not argued in the brief and may not be considered by this court since they are deemed to be waived. Western Mining Supply Co. v. Melzner, 48 Mont. 174, 136 P. 44. We believe that the remaining specifications of error resolve themselves into eight main questions for our consideration on this appeal. Each of these questions will be considered separately.

The first question concerns the legal relationship between plaintiff and defendant and the consequent duty of defendant to plaintiff.

At the outset of a consideration of this question, it should be noted that, at the trial, there was a question concerning the ownership of the water tank at the time of the accident. Defendant seemed to urge that the tank was actually owned by Hancock and not defendant. There was ample evidence indicating that defendant had exclusive control of the tank at the time of the accident. There was testimony that defendant kept the tank cleaned and painted and treated it as its own. There was evidence that the tank was owned by defendant following the accident, and that it was moved with the rest of defendant's equipment to subsequent drilling jobs. There was no actual evidence offered to show that the defendant did not own the water tank. We believe that there was sufficient evidence to show at least a proprietary interest on the part of defendant in the water tank.

Defendant contends that plaintiff was not an invitee of defendant while climbing the water tank and, at most, was only a licensee. In support of this contention, defendant claims that plaintiff contracted exclusively with Hancock to furnish the water which was needed for the drilling of the oil well. From the record it appears that plaintiff actually was under contract with Hancock to furnish the water. However, there was evidence that one of defendant's representatives was present when Hancock approached plaintiff concerning the job, and that defendant fully acquiesced in having plaintiff furnish the water. There was also evidence that defendant's representative indicated to plaintiff how to use the ladder in checking the water level of the tank and also evidence that defendant's employees observed plaintiff climbing this ladder twice a day for twelve days before the accident.

In the case of Jonosky v. Northern Pac. Ry., 57 Mont. 63, 73, 187 P. 1014, 1015, this court stated the distinction between invitation and license as follows:

'* * * * Much of the confusion arises from the failure of the courts to distinguish between a license and an invitation, and particularly between an implied license and an implied invitation. The distinction is not merely one of descriptive phraseology, but has its foundation in sound common sense. An invitation is inferred where there is a common interest or mutual advantage, while a license is implied where the object is the mere pleasure, convenience, or benefit of the person enjoying the privilege.' Emphasis supplied.

This common interest or mutual advantage test, as applied in the Jonosky case, has been expressly affirmed in the later Montana decisions of Hickman v. First Nat. Bank of Great Falls, 112 Mont. 398, 117 P.2d 275, and Ahlquist v. Mulvaney Realty Co., 116 Mont. 6, 152 P.2d 137. Also see Thompson v. Yellowstone Livestock Commission, 133 Mont. 403, 324 P.2d 412, which approved the same type of language as was used in a California decision.

Applying this common interest or mutual advantage test to the facts in the instant case, we conclude that plaintiff was an invitee of defendant at the time of the accident. There was uncontroverted testimony in the record which indicated that large quantities of water are indispensable in the drilling of an oil well. It is evident that defendant required and used water in drilling the well and plaintiff furnished this water. Without the water defendant's drilling would be discontinued. For this reason, the presence of plaintiff on the water tank in order to furnish the water for the drilling of the oil well was for the common interest or mutual advantage of both plaintiff and defendant, and he was an invitee of defendant while on the tank.

Since the relationship between plaintiff and defendant was an inviteeinvitor relationship, defendant owed plaintiff the duty of exercising reasonable or ordinary care and a failure to exercise such care would constitute actionable negligence on the part of defendant. Montague v. Hanson, 38 Mont. 376, 99 P. 1063; Chichas v. Foley Bros. Grocery Co., 73 Mont. 575, 236 P. 361; McCulloch v. Horton, 102 Mont. 135, 56 P.2d 1344; Nichols v. Consolidated Dairies, 125 Mont. 460, 239 P.2d 740, 28 A.L.R.2d 1216.

The second question concerns the sufficiency of the evidence of negligence on the part of defendant. This question was raised by defendant by specifying error in that the district court overruled the separate motions of defendant for nonsuit, for a directed verdict, and for a new trial on this ground.

Much of the evidence of negligence in this case is circumstantial. In Exchange State Bank of Glendive v. Occident Elevator Co., 95 Mont. 78, 87, 24 P.2d 126, 129, 90 A.L.R. 740, this court stated the following rule:

'The rule as to circumstantial evidence in a civil case is that a party will prevail if the preponderance of the evidence is in his favor. This court has said: 'The solution of any issue in a civil case may rest entirely upon circumstantial evidence * * *. All that is required is that the evidence shall produce moral certainty in an unprejudiced mind. * * * In other words, when it furnishes support for the plaintiff's theory of the case, and thus tends to exclude any other theory, it is sufficient to sustain a verdict or decision.' [Citing other Montana authority.]'

The testimony of plaintiff concerning the negligence of defendant was as follows: When he climbed the ladder for the first time be checked the ladder rungs and the connection where the pipe and hose joined together to make certain that they were solid and safe, and...